Kailash and Ors vs State Of Rajasthan

Appellants have filed the appeal challenging judgment of conviction dated 22. 08.2015 and order of sentence dated 24.08.2015 passed by the Court

of Additional Sessions Judge, Dausa, District Dausa (hereinafter referred to as 'the trial court') whereby they were convicted and sentenced qua

offence punishable under Sections 341, 323, 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC').

Prosecution story, in brief, is that a complaint Exhibit P-15 was lodged by complainant Ramhet on 17.08.2012 at Police Station Sadar, Dausa stating

therein that on 17.08.2012 at about 11.00 A.M., complainant Ramhet and Dinesh were present in their house. After sometime, Bhajani came and

shooed the buffalo from his fields. Suddenly, Ramesh Chand Meena, Rameshwar Meena and Kailash Chand Meena along with Sita Devi, Kamla

Devi, Sunita, Rambai, Suresh, Batti Lal, Mahendra, Hansa, Teeja, Sunita daughter of Ramesh, Kavita, Rasal, Archana, Kali came there and inflicted

injuries on the person of Bhajan Lal, brother of the complainant with axe, barchi, iron rods and sticks. When the complainant intervened, he also

suffered injury on his head with an axe. When Dinesh tried to intervene, he was also inflicted injuries. Rameshwar caught hold of Bhajan Lal and the

others inflicted injuries on him. Kailash continued giving stick blows to Bhajan. Thereafter, the accused left the spot after threatening the complainant

and Dinesh. Injured Bhajan Lal was removed to the hospital for treatment where he was declared dead.

On the basis of the complaint filed by the complainant, formal F.I.R. No. 335 dated 17. 08.2012 was registered at Police Station Sadar, District

Dausa for offence punishable under Sections 143, 323, 341 and 302 IPC.

After completion of investigation and necessary formalities, challan was presented against accused Kailash @ Pappu, Rameshwar and Ramesh @

Ramni for offence punishable under Sections 143, 323, 341 and 302 IPC. Thereafter, supplementary challan was presented against accused Mahendra

and Batti Lal for offence punishable under Sections 143, 323, 341 and 302 IPC as investigation qua them was initially kept pending. So far as the other

accused are concerned, they were found innocent during investigation.

Accused Rameshwar died on 18.07.2013 and proceedings against him were dropped.

Charges were framed against the accused under Section 143, 323, 341 and 302 IPC. Accused did not plead guilty to the charges framed against

them and claimed trial.

Prosecution, in order to prove its case, examined 22 witnesses during trial.

Accused, when examined under Section 313 Cr.P.C. after close of prosecution evidence, prayed that they were innocent and had been falsely

involved in the case. Accused examined two witnesses in their defence.

The trial court after completion of trial vide its judgment of conviction dated 22.08.2015 and order of sentence dated 24.08.2015 convicted and

sentenced the appellants as indicated hereinabove and acquitted accused Ramesh @ Ramni of the charges framed against him. Hence, this appeal

has been filed by the appellants.

Learned counsel for the appellants has submitted that the prosecution has miserably failed to prove its case. Statements of the eye-witnesses were

not reliable. Eye-witnesses had been later introduced as witnesses by the prosecution to strengthen its case. Parties are closely related to each other.

Assuming that this Court comes to a conclusion that the appellants have committed the offence, then at the most it could be said to be a case falling

under Section 304 IPC and the sentence of the appellants is liable to be reduced to the period already undergone by them.

Learned State Counsel has opposed the appeal.

Present case relates to murder of Bhajan Lal. As per the prosecution story, in the incident-in-question, Bhajan Lal had been murdered and

witnesses P.W.3 Dinesh and P.W.22 Ramhet had suffered injuries.

Complainant Ramhet while appearing in the witness box as P.W.22 deposed that on 17.10.2012 at about 11.00 A.M., he was present in his house

along with Dinesh. After some time, Bhajan Lal came. In the meantime, Ramesh, Rameshwar, Kailash, Sita, Kamla, Rambai, Batti Lal, Mahendra,

Suresh, Archana, Rasal, Hansa, Teeja, Sunita, Kavita, Jitendra came and attacked Bhajan Lal with axe, sticks and iron rods. When he intervened to

rescue Bhajan, he also suffered axe blow on his head. Dinesh also intervened to rescue Bhajan and he also suffered injuries. Rameshwar had caught

hold of Bhajan Lal whereas others inflicted injuries on his person. While leaving, Kailash gave a stick blow on the head of Bhajan Lal and warned

them. They took Bhajan Lal to the hospital where he was declared dead. On the basis of his statement, FIR was registered. In his cross-examination,

he stated that litigation was pending between the parties.

P.W.3 Dinesh deposed that on 17.08.2012 at about 11.00 A.M., Bhajan Lal was coming with buffalo. Rameshwar caught hold of Bhajan Lal and

Batti Lal, Kailash and Hansa gave axe blows to him. Kailash gave a stick blow on the shoulder of Bhajan. He along with Ramhet and his sister-in-law

Meera intervened to rescue him but they were also inflicted injuries. He was inflicted injuries by Teeja, Mahendra, Ratna, Rasal, Rambai, Suresh with

sticks and iron rods. Jeetu, Pappu, Sunita, Sita gave stick and iron rod blows to Ramhet. Bhajan Lal was removed to the hospital where he was

declared dead. When the said witness was again examined as P.W.18, he deposed that Ramesh had given an axe blow on the head of Bhajani and

Batti Lal, Mahendra and Suresh had also inflicted injuries to Bhajan Lal. He admitted in his cross-examination while appearing in the witness box as

P.W.3 that some litigation was pending between the parties.

P.W.5 Suresh deposed that on the day of incident when he reached the spot, he saw that Bhajan was lying in an injured condition. He stated that

land dispute was pending between the parties.

P.W.6 Kishan Lal @ Shri Kishan deposed that he had been told about the incident by Ramhet on phone.

P.W.7 Meera Devi deposed that on the day of incident, she was present in her house in the fields. At about 11.00 A.M., Rameshwar and Ramesh

asked them to release the buffalo from the 'peg'. Bhajan Lal was bringing the buffalo after releasing it, in the meantime, Rameshwar caught hold of

Bhajan Lal. Then, Ramesh inflicted stick blow on the head of Bhajan Lal. Batti Lal gave axe blow on the forehead of Bhajan Lal. Hansa gave an axe

blow on the forehead of Bhajan Lal from the sharp side. Teeja gave an axe blow from the sharp side and Ramesh inflicted stick blow to Bhajan.

Mahendra also gave stick blow on the head of Bhajan Lal. Kailash also inflicted injuries to Bhajan Lal. Rasal gave a stick blow to Bhajan. Sita also

gave a stick blow to Bhajan Lal on his shoulder and head. Kamla, Rambai also gave stick blows to Bhajan Lal. Archana and Kali also inflicted injuries

to Bhajan. Sunita also gave stick blow on the shoulder of Bhajan Lal. She was inflicted injuries by Kamla, Rambai, Sunita, Sita, Suresh with sticks and

axe. When her brother-in-law Dinesh and husband Ramhet intervened to rescue Bhajan, they were also given stick and axe blows. Bhajan Lal was

removed to the hospital where he was declared dead by the doctors.

P.W.8 Mukesh deposed that on the day of incident, he had reached the spot on hearing cries of Meera and saw that Ramesh, Rameshwar,

Kailash, Suresh, Mahendra, Batti Lal, Hansa, Teeja and Rasal had inflicted injuries with axe, sticks and iron rods to Bhajan Lal and he had died. They

had also inflicted injuries to Ramhet, Meera and Dinesh.

P.W.9 Banwari Lal Meena deposed that on the day of incident, he was present in his fields. On hearing noise from the fields of Ramhet, he had

reached the spot. Ramesh, Rameshwar, Kailash, Batti Lal, Mahendra, Suresh, Hansa, Teeja, Rambai, Kamla attacked Bhajan Lal with axe, iron road

and sticks. Ramhet, Dinesh and Mukeshi were also attacked by the accused when they intervened to rescue Bhajan Lal. Bhajan Lal was removed to

the hospital for treatment where he was declared dead.

P.W.11 Shimbhu, P.W.12 Suresh and P.W.13 Chouthmal did not support the prosecution case with regard to involvement of the appellants in the

crime.

P.W.14 Banwari Lal deposed that on the day of incident, he was present in his fields and saw that Ramesh, Kailash, Suresh, Batti Lal, Mahendra,

Rameshwar, Rambai, Hansa, Teeja, Kamla had inflicted injuries to Bhajan Lal. When he reached the spot, Bhajan Lal had already fallen under the

tree. Ramesh was armed with an axe, whereas, Mahendra and Batti Lal were armed with iron rods and Kailash was armed with a stick. Others were

armed with sticks and iron rods. Ramhet, Dinesh and Meera had also suffered injuries.

P.W.15 Nathulal deposed that Lallu had given a stick blow on the head of Bhajan Lal. He had not seen any other person inflicting injuries to

Bhajan Lal.

P.W.16 Mangi Lal and P.W.17 Ramkaran did not support the prosecution case during trial.

P.W.2, Dr. R.D. Sharma proved Post Mortem Examination Report of the deceased, Exhibit P-2. As per Post Mortem Examination Report,

deceased had suffered following injuries:

Lacerated wound 5"" x 1/2""x bone deep on parieto occipital region of left side scalp.

Lacerated wound 4"" x 1""x bone deep 1"" below the injury no. 1.

Lacerated wound 4"" x 1""x bone deep on 1/2"" below injury no. 2.

Cause of death of the deceased was opined to be coma due to head injury which was sufficient to cause death in ordinary course of nature.

Remaining witnesses have deposed with regard to investigation conducted in the case.

So far as injured Ramhet P.W.22 and Dinesh P.W.3 are concerned, as per their Medico-Legal Examination Reports, Exhibit P-3 and Exhibit P-4

respectively, they had suffered simple injuries with blunt weapons. The said reports were proved by Dr. R.D. Sharma, P.W.2.

As per Exhibit P-14, an axe was recovered from accused Rameshwar on the basis of his disclosure statement suffered under Section 27 of the

Indian Evidence Act, 1872. As per Exhibit P-18, a stick was recovered on the basis of disclosure statement suffered by appellant Kailash @ Pappu.

So far as appellants Mahendra and Batti Lal are concerned, no recovery was effected from them during investigation of the case.

Thus, from the ocular evidence it transpires that so far as appellant Kailash @ Pappu is concerned, he was armed with a stick at the time of

incident and had inflicted injuries to the deceased with the weapon carried by him. During investigation, a lathi (stick) was recovered from appellant

Kailash @ Pappu vide Exhibit P-18. As per medical evidence, deceased had suffered three lacerated wounds on his head. Thus, from the ocular

evidence as well as medical evidence it stands duly established that appellant Kailash @ pappu was armed with a stick at the time of incident and had

inflicted injuries to the deceased. Appellant had come to the spot armed with a weapon. Hence, it cannot be said that it was a case falling under

Section 304 IPC. Rather, from the evidence on record, it is evident that appellant Kailash had inflicted injuries to the deceased with an intention to

commit his murder. Hence, the trial court had rightly ordered conviction and sentence of appellant Kailash @ Pappu with regard to charges framed

against him.

So far as appellant Mahendra is concerned, no specific overt act is attributed to him by the witnesses. No recovery was effected from appellant

Mahendra during investigation of the case. Although witness Dinesh when re-examined as P.W.18 deposed that appellant Mahendra had also inflicted

injury to Bhajan Lal but he had not attributed any injury on the person of Bhajan Lal to appellant Mahendra when earlier his statement was recorded

as P.W.3. Dinesh had also alleged that appellant Mahendra had inflicted injury to him along with others but no specific injury is attributed to appellant

Mahendra by Dinesh P.W.3 on his person. Complainant has also not attributed any specific overt act to appellant Mahendra, although, he has named

him as one of the accused. Although P.W.7 Meera had stated that appellant Mahendra had given a stick blow on the head of deceased but her

statement in this regard is not corroborated by Dinesh, P.W.3/P.W.18 and Ramhet P.W.22. Possibility that Mahendra might have been falsely

involved in this case by the complainant party with a view to over implicate the number of accused cannot be ruled out. Parties are closely related to

each other and were also having litigation. The complainant party had tried to involve most of the family members of the accused party. Hence, so far

as appellant Mahendra is concerned, he is liable to be acquitted by giving him benefit of doubt.

So far as appellant Batti Lal is concerned, it is the case of the eye-witnesses that Batti Lal was armed with an axe and had given a blow from the

sharp side on the person of the deceased. Deceased had suffered lacerated wounds and there is no specific medical opinion on record to the effect

that any of the injuries suffered by deceased was with a sharp edged weapon. Injured had also suffered injuries with blunt weapons. No recovery was

effected from appellant Batti Lal during investigation of the case. Possibility that Batti Lal might have been falsely involved in this case by the

complainant party with a view to over implicate the number of accused cannot be ruled out. Parties are closely related to each other and were also

having litigation. The complainant party had tried to involve most of the family members of the accused party. In the facts and circumstances of the

present case, Batti Lal is also liable to be acquitted of the charges framed against him by giving him benefit of doubt.

Accordingly, appeal qua the appellants Mahendra and Batti Lal is allowed. They are acquitted of the charges framed against them and the

impugned judgment of conviction dated 22.08.2015 and order of sentence dated 24.08.2015 qua the said appellants are set aside. The said appellants

who are in custody, be set at liberty forthwith, if not required in any other case.

Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants Mahendra S/o Rameshwar and Batti Lal S/o

Rameshwar are directed to forthwith furnish a personal bond in the sum of Rs. 25,000/- each, and surety bond of the like amount, before the Registrar

(Judicial) of this Court, which shall be effective for a period of six months with the stipulation that in the event of filing of Special Leave Petition

against this judgment or on grant of leave, appellants Mahendra S/o Rameshwar and Batti Lal S/o Rameshwar on receipt of notice thereof, shall

appear before the Supreme Court.

Appeal qua appellant Kailash @ Pappu is dismissed and his conviction and sentence as ordered by the trial court vide impugned judgment of

conviction dated 22.08.2015 and order of sentence dated 24.08.2015 are upheld.